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ArtI.S9.C8.1 Overview of Titles of Nobility and Foreign Emoluments Clauses

Article I, Section 9, Clause 8:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

This provision encompasses two distinct commands. The first half, sometimes called the federal “Title of Nobility Clause,” 1 limits the power of the United States by prohibiting it from granting any “title of Nobility.” The second half, often referred to as the “Foreign Emoluments Clause,” 2 limits the actions of certain federal officers by prohibiting them from accepting “any present, Emolument, Office, or Title, of any kind whatever” from a foreign state, without the consent of Congress.

For most of their history, neither the Title of Nobility Clause nor the Foreign Emoluments Clause have been much discussed or substantively examined by the courts.3 The meaning and scope of the Foreign Emoluments Clause have been examined in opinions from the Department of Justice’s Office of Legal Counsel and the Comptroller General of the United States concerning the obligations of federal officers with respect to gifts, salaries, awards, and other potential emoluments from foreign sources.4 During the administration of President Donald Trump, the lower federal courts for the first time issued substantive—but often conflicting—decisions interpreting the Foreign Emoluments Clause.5

See, e.g., Mark R. Killenbeck, The Physics of Federalism, 51 U. Kan. L. Rev. 1, 7 (2002) (using the term “Title of Nobility Clause” to refer to this provision). More often, the collective terms “Title of Nobility Clauses” or “Nobility Clauses” are used to refer to both this provision and the parallel prohibition on state-granted titles of nobility in the following section. See U.S. Const. art. I, § 10, cl. 1 ( “No state shall . . . grant any Title of Nobility.” ); see, e.g., Akhil Reed Amar, Foreword: The Document and the Doctrine, 114 Harv. L. Rev. 26, 131 (2000) (using the term “Title of Nobility Clauses” to refer to these two prohibitions); J.M. Balkin, The Constitution of Status, 106 Yale L.J. 2313, 2349 (1997) (same). back
See, e.g., Deborah Samuel Sills, The Foreign Emoluments Clause: Protecting Our National Security Interests, 26 J.L. & Pol’y 63 (2018); Amandeep S. Grewal, The Foreign Emoluments Clause and the Chief Executive, 102 Minn. L. Rev. 639 (2017); Seth Barrett Tillman, The Original Public Meaning of the Foreign Emoluments Clause: A Reply to Professor Zephyr Teachout, 107 Nw. U.L. Rev. Colloquy 180 (2013). The usage “Foreign Emoluments Clause” distinguishes Article I, Section 9, Clause 8 from another clause governing the emoluments that the President in particular may receive, sometimes called the “Domestic Emoluments Clause.” See ArtII.S1.C7.1 Emoluments Clause and Presidential Compensation. back
See generally Michael A. Foster & Kevin J. Hickey, Cong. Rsch. Serv., R45992, The Emoluments Clauses and the Presidency: Background and Recent Developments 1 (2019), ( “For most of their history, the Foreign and Domestic Emoluments Clauses . . . were little discussed and largely unexamined by the courts.” ); Manley W. Roberts, The Nobility Clauses: Rediscovering the Cornerstone, 1 J. Attenuated Subtleties 20, 21 (1982), reprinted in 9 J.L.: Periodical Lab’y of Leg. Scholarship 102, 103 (2019) ( “For two centuries the courts . . . said nothing about the [Title of] Nobility Clauses.” ). back
See, e.g., Applicability of the Emoluments Clause and the Foreign Gifts and Decorations Act to the President’s Receipt of the Nobel Peace Prize, 33 Op. O.L.C. 1 (2009); Proposal that the President Accept Honorary Irish Citizenship, 1 Op. O.L.C. Supp. 278 (1963); In re Retired Uniformed Service Members Receiving Compensation from Foreign Governments, 58 Comp. Gen. 487 (1979). back
See ArtI.S9.C8.3 Foreign Emoluments Clause Generally. back